NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

MARTIN OGDEN,

Plaintiff/Appellant,

v.

DIGITAL INTELLIGENCE SYSTEMS LLC,

Defendant/Appellee.

No. 1 CA-CV 17-0406

Appeal from the Superior Court in Maricopa County

No. CV2016-052899

The Honorable John R. Hannah, Jr., Judge

AFFIRMED

COUNSEL

Martin Ogden, Glendale

Plaintiff/Appellant

Littler Mendelson, PC, Phoenix

By Joshua Waltman

Counsel for Defendant/Appellee

FILED 12-13-2018
OGDEN v. DISYS

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in 

which Judge Maria Elena Cruz and Judge Randall M. Howe joined.

J O H N S E N, Judge:

¶1 Martin Ogden appeals the superior court's dismissal of his 

petition to compel arbitration of claims against Digital Intelligence Systems, 

LLC ("DISYS"). For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Ogden began working for DISYS in December 2013. Shortly 

thereafter, he executed an arbitration agreement with the company, which 

stated:

1. Arbitration Agreement & Procedures. As a condition of 

Employee's employment at DISYS, Employee agrees that any 

controversy or claim arising out of, or relating to, Employee's 

employment relationship with DISYS or the termination of 

that relationship, must be submitted for non-binding 

mediation before a third-party neutral and, if necessary, for 

final and binding resolution by a private and impartial 

arbitrator . . . .

¶3 DISYS terminated Ogden's employment in June 2015. Shortly 

thereafter, Ogden asserted various claims against DISYS and pursued them 

as provided in the arbitration agreement. Eventually, Ogden and DISYS 

agreed to settle Ogden's claims. They executed a Settlement and Release 

Agreement (the "Settlement Agreement"), which provided in relevant part:

The Parties have agreed to resolve any and all disputes and 

claims that Ogden now has or has ever had against DISYS, 

whether known or unknown, including the Litigation, 

pursuant to the terms of this Agreement.

* * *
OGDEN v. DISYS

Decision of the Court

3

2. Release and Covenant Not To Sue 

a. Ogden . . . hereby fully and without limitation releases, 

covenants not to sue, and forever discharges DISYS . . . from 

any and all rights, claims, demands, liabilities, actions, and 

causes of action, whether in law or in equity, suits, damages, 

losses, attorneys' fees, costs, and expenses, of whatever nature

whatsoever, known or unknown, fixed or contingent, 

suspected or unsuspected ("Claims"), that Ogden . . . now 

have, or may ever have, against DISYS . . . or are in any way 

related to: (i) Ogden's employment by DISYS; and (ii) any acts 

or omissions by DISYS or the DISYS Releasees occurring prior 

to the date that Ogden executes this Agreement.

¶4 Sometime after signing the Settlement Agreement and 

receiving payment from DISYS, Ogden attempted to initiate an arbitration. 

DISYS, however, refused to pay the required arbitration filing fee, asserting

that nothing was left to arbitrate after Ogden released his claims in the 

Settlement Agreement.

¶5 Ogden then filed a petition in the superior court to compel

DISYS to arbitrate. His petition asserted that his termination "will result in 

a number" of claims against DISYS, including claims for unpaid wages, 

wrongful termination, unjust enrichment, breach of contract and breach of 

the duty of good faith and fair dealing in an employment agreement.

¶6 In response, DISYS argued that by signing the Settlement 

Agreement, Ogden had released the claims he identified for arbitration. In 

his reply, Ogden admitted that the Settlement Agreement would constitute 

a release of all of his claims against DISYS but argued DISYS had breached 

its payment obligation under the Settlement Agreement.

¶7 The court denied Ogden's motion to compel arbitration and 

entered a final judgment. Ogden timely appealed. We have jurisdiction 

pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona 

Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2018) and -2101(A)(1) 

(2018).1

 

1 Absent material revision, we cite the current version of a statute or 

rule.
OGDEN v. DISYS

Decision of the Court

4

DISCUSSION

A. Denial of the Motion to Compel Arbitration.

¶8 We review the denial of a motion to compel arbitration de 

novo. Sun Valley Ranch 308 Ltd. P'ship v. Robson, 231 Ariz. 287, 291, ¶ 9 (App. 

2012). Contract interpretation is a question of law we review de novo. 

Grosvenor Holdings, L.C. v. Figueroa, 222 Ariz. 588, 593, ¶ 9 (App. 2009). We 

consider the plain meaning of the words in the context of the contract as a 

whole. United Cal. Bank v. Prudential Ins. Co. of Am., 140 Ariz. 238, 259 (App. 

1983). "A written agreement to submit any existing controversy to 

arbitration or a provision in a written contract to submit to arbitration any 

controversy thereafter arising between the parties is valid, enforceable and 

irrevocable, save upon such grounds as exist at law or in equity for the 

revocation of any contract." A.R.S. § 12-1501 (2018).

¶9 As Ogden argues, the arbitration agreement he executed 

when he began work at DISYS applied to "any controversy or claim arising 

out of, or relating to [Ogden's] employment relationship with DISYS or the 

termination of that relationship." The employment-based claims that 

Ogden identified in his petition to compel arbitration arguably would fall 

within the arbitration agreement because they arose out of his employment 

relationship with DISYS. In the Settlement Agreement, however, Ogden 

explicitly "agreed to resolve any and all disputes and claims that [he] now 

has or has ever had against DISYS." In the Settlement Agreement, he 

released, discharged and promised not to sue DISYS and all of its agents 

from or for "any and all rights, claims, demands, liabilities, actions, and 

causes of action." Given his release and discharge of DISYS from all his 

employment-related claims, the superior court did not err by denying his 

motion to compel arbitration of those claims. Simply put, none of those 

claims remained to be arbitrated.

¶10 Ogden nevertheless argues that DISYS breached the 

Settlement Agreement by failing to pay him what it had agreed to pay. He 

argues that DISYS's asserted breach of the Settlement Agreement is an issue 

to be arbitrated because it is a claim that arises out of his employment 

relationship with DISYS. We take judicial notice that, as shown in the 

record in a companion appeal between these same two parties, Ogden has 

filed a civil complaint alleging that DISYS breached the Settlement 

Agreement by paying him $10,341 when it had promised to pay him 

$13,810.
OGDEN v. DISYS

Decision of the Court

5

¶11 Ogden's claim for breach of the Settlement Agreement, 

however, does not arise out of the employment relationship but instead 

arises solely out of the Settlement Agreement, which itself has no 

arbitration provision. Cf. S. Cal. Edison Co. v. Peabody W. Coal Co., 194 Ariz. 

47, 51, ¶ 11 (1999) ("Although it is commonly said that the law favors 

arbitration, it is more accurate to say that the law favors arbitration of 

disputes that the parties have agreed to arbitrate."). The Settlement 

Agreement in effect constituted a novation of all prior agreements 

respecting Ogden's employment with DISYS, including the arbitration 

agreement. See Western Coach Corp. v. Roscoe, 133 Ariz. 147, 152 (1982) 

(novation is "a new, valid contract" that extinguishes previous obligations). 

B. Attorney's Fees.

¶12 DISYS asks for attorney's fees on appeal under A.R.S. § 12-

341.01 (2018) and the arbitration agreement. Although § 12-341.01 allows a 

court to grant attorney's fees to the successful party in an action arising out 

of a contract, it does not allow a fees award that would be contrary to "an 

express contractual provision governing recovery of attorney's fees." Am. 

Power Prods., Inc. v. CSK Auto, Inc., 242 Ariz. 364, 368, ¶ 14 (2017) (quotation 

omitted).

¶13 The relevant provision in the parties' arbitration agreement is 

in § 1(F)(ii), which provides:

Excluding the initial filing fee, which shall be borne by the 

claimant, DISYS agrees to pay the administrative fees and the 

arbitrator's fees and expenses as provided in the AAA 

Employment Arbitration Rules and Mediation Procedures. 

All other costs and expenses associated with the arbitration, 

including, without limitation, each party's respective 

attorneys' fees, shall be borne by the party incurring the 

expense.

¶14 Ogden argues this provision bars DISYS's claim for fees

because it states that each party will bear its own fees "associated with the 

arbitration." To be sure, any attorney's fees that DISYS incurred in the 

arbitration would be "associated with the arbitration" and would be borne 

by DISYS under the terms of the arbitration agreement. But fees incurred 

in responding to a petition to compel arbitration filed in superior court are 

not "associated with the arbitration." See WB, The Bldg. Co., LLC v. El Destino, 

LP, 227 Ariz. 302, 311-13, ¶¶ 23-31 (App. 2011) (superior court may award 

fees under § 12-341.01 to a defendant who successfully challenged 
OGDEN v. DISYS

Decision of the Court

6

applicability of an arbitration agreement); City of Cottonwood v. James L. Fann 

Contracting, Inc., 179 Ariz. 185, 195 (App. 1994) (affirming award under § 

12-341.01 of fees "associated with the judicial proceedings to defeat the 

motion for stay [of arbitration]").

¶15 Accordingly, DISYS is entitled to its costs and, in the exercise 

of our discretion, we award DISYS its reasonable attorney's fees incurred 

on appeal, contingent on compliance with Arizona Rule of Civil Appellate 

Procedure 21.

CONCLUSION

¶16 For the foregoing reasons, we affirm the superior court's order

denying Ogden's motion to compel arbitration.